Authored By: Mohammad Shad Uddin Al Jabid
University of Asia Pacific
- Case Title & Citation
The Prosecutor v. Pavle Strugar (2005)
Case No. IT-01-42-T, Verdict, International Criminal Tribunal for the Former Yugoslavia (ICTY), 31 January 2005.
- Court Name & Bench
Court: International Criminal Tribunal the former Yugoslavia (ICTY)
Court: Trial Chamber II (Bench: Kevin Parker and Krister Thelin, as well as Christine Van Den Wyngaert)
- Date of Judgment
Judgment by the Trial Chamber 31 January 2005.
17 July 2008 (Appeals Judgment)
- Parties Involved
Prosecution: Office of the Prosecutor, ICTY.
Accused: Lieutenant General, the Commander of the Second Operational Group of the Yugoslav People’s Army (JNA), Pavle Strugar.
- Facts of the Case
In 1991, the city of Dubrovski, Croatia was attacked by the JNA troops in the Croatian War of Independence led by Strugar.
Old town of Dubrovski is a UNESCO world heritage site, which had no military object but was greatly shelled during the period of October to December 1991.
The attack on 6 December 1991 resulted in death of civilians, injuries as well as extreme damage of historic monuments, churches and cultural buildings. Strugar was good in his command over the forces involved and was unable to prevent or discipline their illegal behavior.
- Issues Raised
- The legitimacy of the Old Town of Dubrovnik as a military target.
- The question of whether the attack on civilians and cultural property forms violations of international humanitarian law (IHL).
- The issue whether command responsibility of Strugar covered or not his failure to prevent or penalize crimes committed by his subordinates.
- Arguments of the Parties
Prosecution:
It was argued that the Old Town was demilitarized and was under IHL protection. Strugar claimed to have responsibility of command and knowledge of the attacks.
Referred to Article 5 of the Hague Convention on Cultural Property of 1954 and Article 3 of the ICTY Statute that outlaws assaults on civilians and cultural property.
Defence:
Argued that it had Croatian military posts in the Old Town.
The units that were directly involved were not effectively controlled by Claimed Strugar.
It was proposed that the attack had been a legitimate military action, and was not an intentional attack on civilian targets or cultural property.
- Judgment / Final Decision
Strugar was convicted of the following:
Attacks on civilians
Razing or intentional destruction of religious, charitable, educational, artistic, and scientific institutions, and historic monuments and works of arts. Destruction that is not militarily necessary. His acquittal on some other counts was because of the inadequacy of evidence. Verdict: 8 years in prison (by appeal). Appeal Judgment (2008): Convictions affirmed; 7.5 years sentence affirmed.
- Legal Rationality / Ratio Decendency.
The Old Town of Dubrovski was obviously defined as a civilian and cultural location, which does not have any military presence that is why its bombardment breached the concept of distinction under Article 48 and 51(2) of the Additional Protocol (1977).
The Tribunal reiterated the fact that cultural property is afforded with a special protection under Article 27 of the Hague Regulations of 1907, and the Hague Convention of 1954.
The court stated that commanders are criminally liable under Article 7(3) of the ICTY Statute when they are aware of or ought to be aware of an act of crimes under their command, and do not stop it, nor do they simply not take any action against it.
This case has affirmed that deliberate or careless destruction of cultural heritage is a war crime according to the customary IHL.
- Conclusion / Observations
The Prosecutor v. Strugar was a major precedent of protecting civilians and cultural heritage in war. It strengthened the fact that cultural sites such as Dubrovski Old Town are not the property of civilians but a representation of mankind and they are secured by the IHL.
The ruling emphasizes the role of military commanders in ensuring that they respect the international laws and maintain human and cultural integrity even in war.
